Marcio Vasconcelos
Once we start our path through the real estate market we will come across legal terms that might confuse us. Easement is one of these legal terms and it plays a crucial role in real estate transactions. When considering buying a home it is important to understand what an easement is and its effect on property rights.
What is an easement?
An easement is a type of property right that allows another person or entity permission to use the property of the landowner for a specific, limited purpose.
This means that if your property is, for example, blocking access to a road, then an easement holder would have permission to cross your property in order to access the road. Or, if a power company has an electric pole on your property, an easement would permit them to access that pole when needed.
This party is called the dominant estate, or dominant tenement. The person who bears the easement and permits the other part on their property is called the servient estate or the servient tenement.
What is an easement around a property?
As stated above, an easement is a right to access a property owners land if and when the land prevents another from accessing a public area, or if part of the land is shared (like a driveway for a two family home), or if the property has structures on it that belong to entities like utility services or otherwise.
Types of easements
In total, there are seven types of easements: appurtenant, in gross, by necessity, by prescription, by condemnation, by party and negative.
Let us take a look at what each of these terms mean:
Appurtenant
“Appurtenant” easements are said to “come with the land,” meaning they are part of the formal ownership of the land. This means that the easement is not chosen by the previous or new property owner, but that the easement is a part of the contract for the purchase or sale of said land. Title searches will reveal appurtenant easements.
In gross
An “in gross” easement does not transfer with the property as it is a choice of the homeowner to have it – this is usually done because the landower will somehow benefit from doing so. A title search would not show an easement in gross. Title searches will not reveal “in gross” easements.
Easement by Necessity
Acquired through court order, the easement by necessity permits one to pass through another’s land in cases in which there is no other way to enter or leave the property.
Easement by Prescription
When someone uses another's property for a period of time without having legal permission, they have to acquire a prescriptive easement. This is usually granted by a court when certain conditions are met. The length of time of use set by state law (typically 10-21 years) must have been continual and without the owner’s approval, but with the owner’s knowledge.
Easement by Condemnation
Created by eminent domain, the property owner must be compensated for providing the easement.
Party Easement
Created by written agreement between parties regarding a common boundary, such as a shared fence or a driveway.
Negative Easement
This type of easement prohibits the property owner from doing something on their land that might affect others, like blocking a neighbor's view.
How to Create an Easement
Easements can be created in a variety of ways:
Express Grant
The property owner can grant an easement to another party through a written agreement.
Implication
Easements can be implied, as in the example of a landlocked parcel that has used a neighbor's land to access a road for years. In this case, an implied easement might be established.
Prescription
If someone uses another's land without permission for a specified period, they may gain a prescriptive easement.
How to find easement information on a property?
Easement information can be found on individual deeds and in subdivision maps. Both of these documents are on record. Also, a copy of your title insurance policy should show all recorded easements regarding your property.
What is another common name for an easement in real estate?
Other terms for “easement” include “right of way” and “access rights”.
People Also Ask
How Do Easements Work?
Easements either come with the property, meaning that they cannot be undone or changed, or they are the choice of the property owner, meaning that they can be undone or changed. Easements can be in place for a variety of reasons, which you can find above.
What do the terms dominant estate and servient estate mean?
A dominant estate, or dominant tenement is the party who makes use of the property in question. So if you must pass through my property to access a road, you are the dominant estate. In this example, I would be what is called the servient estate, or servient tenement.
What is the process for resolving easement disputes?
If a dispute arises over an easement, check your Land Registry property title and/or deeds to see if the easement is a part of the terms. All appurtenant easements will be registered there.
Knowing the details of the contract, determine if your rights are being infringed upon and assess the amount of inconvenience you are suffering. Consider talking to your neighbor and try to negotiate a settlement that accommodates both your needs.
Do easements affect property values?
Easements rarely affect property value directly, but at the time of sale of a property with easements, buyers might perceive the easement as a restriction that diminishes the value of the property.
